[2004] KEHC 1813 (KLR)
The court found that the entire prosecution was conducted by a police corporal, who is not qualified to prosecute under section 85 of the Criminal Procedure Code. As a result, the trial was a nullity. The conviction and sentence were quashed, and the appellant was ordered to be set at liberty.
Source-derived case information.
- Citation
- [2004] KEHC 1813 (KLR)
- Parties
- Appellant: Richard Okoth Odero; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 35 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction and sentence quashed; appellant set at liberty
- Judges
- K Bauni
- Legal Topics
- Preparation to Commit Felony, Unqualified Prosecutor, Nullity of Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Okoth Odero
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution of the appellant by a police corporal rendered the trial a nullity.
- 2 Whether the conviction and sentence should be quashed due to lack of a qualified prosecutor.
Ratio Decidendi
The court found that the entire prosecution was conducted by a police corporal, who is not qualified to prosecute under section 85 of the Criminal Procedure Code. As a result, the trial was a nullity. The conviction and sentence were quashed, and the appellant was ordered to be set at liberty.
Court Disposition
appeal allowed; conviction and sentence quashed; appellant set at liberty
Orders
- The appeal is allowed.
- The conviction and sentence are quashed.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT KISII
CRIMINAL APPEAL 35 OF 04
RICHARD OKOTH ODERO …………………………………………….. APPELLANT
VERSUS
REPUBLIC …………………………………………………………….. RESPONDENT
JUDGMENT
Appellant was charged with offence of preparation to commit a felony c/s 308(1) of the Penal Code by DM1 Rongo. He pleaded not guilty. Case proceeded for hearing. He was convicted and sentenced to five years imprisonment and 5 strokes of the cane. The learned state counsel conceded the appeal. He stated that prosecution was conducted by a police corporal a person not qualified to prosecute. Indeed this is so. Record shows that on 24th April 2003 when the appellant first appeared in court to take plea the prosecutor was Cpl. Mugo. After that on all the days the matter came up in court record shows “Coram as before”
It is obvious therefore Cpl. Mugo is the one who conducted the hearing. Being an unqualified as provided in s.85 of CPC the trial was a nullity. I therefore allow the appeal and quash both the conviction and sentence. Appellant be set at liberty.
KABURU BAUNI
JUDGE
23/6/2004
Delivered on 23rd June 2004. Mr. Kemo for state.